33 Kan. 634 | Kan. | 1885
The opinion of the court was delivered by
On April 4,1883, an action was pending in the district court of Bourbon county, wherein C. F. Drake was the plaintiff and the First National Bank of Fort Scott, Kansas, was the defendant. On that day the defendant filed two motions, one asking the court to require the plaintiff to amend his amended petition so as to make it more definite and certain in certain particulars, and the other asking the court to require the plaintiff to further amend such petition by striking out certain alleged surplus and redundant matters therein contained. On May 23,1883, these motions were heard, and both of them were partially sustained and partially overruled, and the plaintiff was required to amend his amended petition so as to make it correspond to the orders of the court made on said motions, and sixty days were given him within which to so amend. The plaintiff, however, did not amend in any particular, and for that reason the court below, at the September term, 1883, dismissed his action. The orders of the court below partially sustaining the defendant’s motions and dismissing the plaintiff’s action were duly excepted to by the plaintiff, and to reverse these orders the plaintiff, as plaintiff in error, on August 12, 1884, brought the case to this court.
It is conceded by the plaintiff that if the motions were properly sustained, the court below committed no error in dismiss
The plaintiff's action is founded upon the following instruments in writing, to wit:
“$5,500. The First National BaNK, 1
Fort Scott, KaNsas, Oct. 18, 1880. j
“ C. F. Drake has deposited in this bank fifty-five hundred dollars, payable to the order of A. A. Harris, trustee, on return of this certificate properly indorsed.
(Signed) O. F. MartiN, Assistant Cashier.”
“When the First National Bank of Fort Scott, Kansas, at any time after November 1, 1880, and up 'to December 1, 1880, shall convey by good and sufficient quitclaim deed or deeds, free and clear of all tax liens and incumbrances, including the taxes of 1880, all the real estate included in the
“But if said bank shall not properly and legally execute and deliver such deed or deeds as is herein mentioned, as to such real estate, then said Harris, as trustee, shall indorse this • certificate and deliver the same to C. F. Drake, who in that event shall be authorized to receive the money thereon.
“This stipulation and agreement consented to by said Drake, said Chenault, and said bank, all of whom agree to carry out its provisions so far as the same may devolve upon them respectively. This, October 18, 1880.
(Signed) C. H. OsbuN, Cashier.
W. Cheeault.
C. F. Drake.”
The plaintiff, in his amended petition, alleges in substance that at the time when these instruments were executed W. Chenault was the president of the First National Bank, C. H. Osbun was the cashier, and C. F. Martin was the assistant-cashier; that the second instrument was attached to the first, and was a part thereof, or in other words, that the two instruments in effect constituted only one instrument; that on December 1, 1880, the real estate therein mentioned was of the value of $9,500; “that on the first day of December, 1880, and prior and subsequent thereto, he [the plaintiff] demanded of the defendant that it execute and deliver to,him the deed or deeds to said lands and real estate, as in said instrument agreed, and that said Harris, as trustee, offered to indorse the said certificate of deposit to the defendant; that defendant could have made the deed or deeds as.agreed, but, wholly disregarding its obligation and agreement, it failed and refused so to do, and conveyed the same to other and different parties. Wherefore, the plaintiff was damaged in the sum of $4,000, for which he prays judgment against the,defendant.”
Nothing is said in the plaintiff’s pleadings as to what had become of the certificate of deposit — as to whether it had been assigned, or not; or collected, or not; or who held it or owned it; or'whether at the time when the bank sold and conveyed
The supposed irrelevant and redundant matter contained in the petition is as follows:
“At that time there were some taxes, the exact amount of which is not known to the plaintiff, due on said lands and real estate, and which were a lien thereon. The defendant desired an opportunity of paying or compromising said taxes before it should finally make the deed or deeds to plaintiff, and it was agreed by and between plaintiff and defendant that the defendant should have such opportunity. At that time the plaintiff had on deposit some eight or nine thousand dollars of his money with the defendant. The parties mutually desired some evidence that each would perform his and its part of the contract of sale, and it was mutually agreed that $5,500 of the money which plaintiff had on deposit with the defendant should be placed to the credit of A. A. Harris, as trustee, to remain with the defendant according to the terms of a certain certificate of deposit then issued and executed by the defendant for that purpose, . . . the plaintiff giving to the defendant his check for said amount of $5,500. . . Plaintiff says that said instrument and agreement was intended by and between the parties thereto to be an agreement and contract on the part of the defendant to convey to the plaintiff all lands and real estate therein referred to, on or before December 1, 1880; and such was understood and agreed tobe its legal purport and effect by the plaintiff and defendant at the time of its execution.”
This matter is evidently redundant and irrelevant — mere surplusage. The petition is no better with it than without it, and the court below did not err in ordei'ing it to be stricken
The judgment of the court below dismissing the plaintiff’s action will be affirmed.